Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE Der KEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP., Defendants. ______________________________________________________________________________ REPLY IN SUPPORT OF DEFENDANTS SHARRYN E. ROSS AND ROSS, MARTEL & SILVERMAN, LLP'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendants Sharryn E. Ross and Ross, Martel & Silverman, LLP (collectively, "Ross") by and through their attorney, John E. Bolmer, II of Hall & Evans, L.L.C., submit the following Reply Brief in support of their Motion For Summary Judgment: 1. Standard of Review Plaintiff relies in large part on allegations of her amended complaint. The last two sentences of Rule 56 state as follows: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. (emphasis added). Plaintiff contends the allegations of her complaint must be accepted as true. This notion is contrary to the language of Rule 56. The Harris opinion cited at page 1 of

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Plaintiff's brief, is a 1950 case predating the 1963 amendment of Rule 56 which added the above-quoted language. While some reference to the amended complaint may be appropriate in determining what issues of fact are material to the claims asserted (see F.R.E. Rule 56(c)), a plaintiff must present evidence to support its claims when a moving party supports its Rule 56 motion with evidence, in order to argue a genuine issue of material fact exists. (Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991)). 2. Respective Statements of Fact In Ross' initial motion for summary judgment, Ross set forth facts directed toward showing the relationship between Ross and Plaintiff DerKevorkian and the timing of events relative to the statute of limitations issue. The substantive portions of Ross' statement of facts was supported by an affidavit, documents, and discovery responses. In response, Plaintiff lists roughly 22 pages of "facts" and, in effect, restates her amended complaint. In fact, only three of the numbered paragraphs (12, 59 and 64) cite a basis for those statements other than the amended complaint. This voluminous response add details regarding the background of this action. But Plaintiff's response establishes no genuine issue of material fact precluding entry of summary judgment as Ross has requested. Plaintiff's statement of facts #12 asserts "Ross considered both Lionbridge and Plaintiff to be her clients in the process of amending the current Visa and attempting to obtain a green card," and cites to Mr. Ross' deposition for that proposition. Attached hereto as Exhibit A-4 are Ms. Ross' change sheets to that deposition and her transmittal letter to the court reporter. These changes, along with Ms. Ross' affidavit submitted with the motion for summary judgment, make

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it clear that while Ms. Ross would have considered Plaintiff to be a client had an application process gone forward, that condition did not occur. As noted at paragraph 10 of Ms. Ross' affidavit (Exhibit A-1 to the motion for summary judgment), at no time did Ms. Ross believe Plaintiff was her client. That assertion is not contradicted by the out-of-context deposition statement cited by Plaintiff. In Plaintiff's statement #59, Plaintiff asserts Lionbridge relied on Ross' advice. This is irrelevant to Ross' motion for summary judgment. Likewise, the assertions in statement #64 of Plaintiff's brief are irrelevant to the issues raised in Ross' motion. Plaintiff cites no evidence to suggest she formed a belief that Ross was her lawyer at any time during the time an application for a green card was being considered. She cites no evidence to challenge the other material facts Ross asserts are uncontroverted for purposes of the motion for summary judgment. 3. Existence of a Duty

Plaintiff asserts Ross owed Plaintiff a duty as her attorney. None of the uncontroverted facts as presented to this Court establish that either Ms. Ross or Plaintiff believed an attorney/client relationship existed at any relevant time. Plaintiff asserts an attorney/client relationship may be created by the client's agent (page 25 of Plaintiff's brief). No evidence is presented to suggest Lionbridge was Plaintiff's agent for that purpose, or that Lionbridge retained Ross as Plaintiff's lawyer. The case relied on for the portion of the Mallen & Smith section cited by Plaintiff is Streit v. Covington & Crowe, 82 Cal. App.4th 441, 98 Cal. Rptr. 2d 193 (Cal. App. 2000)(cited in 1 Mallen & Smith, Legal Malpractice, §8.3 (2005 Ed.), footnote 40). In Streit, the defendant law firm was hired by

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another law firm on behalf of a common client. This hiring by a clear agent for the client was accepted by, among other things, the defendant firm's entry of a special appearance for the client. Immediately following the portion of Mallen & Smith cited by Plaintiff, that treatise goes on to note: The courts have said that the responsibility of the relationship may neither be assumed nor forced on an attorney, who should have the option to accept or decline the representation. (1 Mallen & Smith, Legal Malpractice, §8.3 (2005 Ed.). Plaintiff challenges Ross' position on Colorado law regarding formation of the attorney/client relationship with citation to two out-of-state decisions: Simon v. Wilson, 684 N.E. 2d 791 (Ill. App. 1997)1; and DePape v. Trinity Health Systems, Inc., 242 F. Supp.2d 585 (N.D. Iowa 2003). Both cases are distinguishable. In Simon, the lawyer knew he was being hired to represent a dying woman and accepted that responsibility, and the husband acted within the clear authority of the woman's power of attorney over estate matters to hire the lawyer on her behalf. Thus, both the lawyer and the client by virtue of her agent's knowledge, understood and intended that an attorney/client relationship would exist. The DePape decision considers at length issues of breach and causation, but notes "there is no dispute that an attorney-client relationship ... existed" between the parties to that case. (242 F. Supp.2d at 608). The decision does not consider when and how such a relationship is formed. 4. Timeliness of the Negligence Claim Plaintiff's negligence claim accrued when she concluded Ross erred in her analysis of the prevailing wage issue and when she incurred damages in the form of her legal fees to address

1 Plaintiff's brief at page 25 incorrectly shows 684 N.E.2d 495 as the location of the Simon decision. The correct page number is 791.

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what Plaintiff saw as a problem. These events happened well before January 2003. As indicated in Ross' initial motion, by December 2002 at the latest, Plaintiff knew Lionbridge was not going forward with her green card application, believed Ross had erred, and began to incur attorney fees to her current and prior legal counsel. Plaintiff asserts at page 31 of the response brief that Plaintiff "had no reason to believe that Ross's conduct gave rise to a claim against her." That is not the test in Colorado for accrual of the statute of limitations. The test is as stated in Ross' motion at pages 9-10. What is critical in determining when a claim accrues "is knowledge of the facts essential to the cause of action, not knowledge of the legal theory upon which an action may be brought." (Morris v. Geer, 720 P.2d 994, 997 (Colo. App. 1986)). 5. Fiduciary Duty Claim Plaintiff has not presented facts to establish a basis for a separate breach of fiduciary duty claim under the Moguls of Aspen case discussed at pages 10-11 of Ross' motion for summary judgment. The facts Plaintiff presents do not support a fiduciary duty claim under the new standard set in the Aller case, discussed at pages 11-12 of Ross' motion. WHEREFORE, Defendants Sharryn E. Ross and Ross, Martel & Silverman, LLP request relief as set forth in their motion for summary judgment.

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DATED this 25th day of October 2005. HALL & EVANS, L.L.C. /s/ John E. Bolmer, II_________________ John E. Bolmer, II David E. Leavenworth Suite 600 1125 Seventeenth Street Denver, Colorado 80202 Telephone: (303) 628-3366 Fax: 303-293-3253 E-Mail: [email protected] Attorneys for Defendants CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 25th day of October, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Joel C. Maguire, Esq. Dietz and Davis, P.C. Suite 400 2060 Broadway Boulder, Colorado 80302 [email protected] Dan S. Cross, Esq. The Overton Law Firm 1080 Kalamath Street Denver, Colorado 80204 [email protected] s/ Glenda J. York, legal secretary John E. Bolmer, II David E. Leavenworth Suite 600, 1125 Seventeenth Street Denver, Colorado 80202 Telephone: (303) 628-3366 Fax: 303-293-3253 E-Mail: [email protected] Attorneys for Defendants

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